Jammu & Kashmir High Court
Union Territory Of Jammu And Kashmir vs Nazir Hussain S/O Munir Hussain on 2 March, 2026
Author: Sanjeev Kumar
Bench: Sanjeev Kumar
Sr. No. 04
2026:JKLHC-JMU:779-DB
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
WP (C) No. 3639/2025
CAV No. 2201/2025
Reserved on : 02.03.2026
Date of pronouncement: 11.03.2026
Date of uploading: 12.03.2026.
1. Union Territory of Jammu and Kashmir
Commissioner/Secretary to Government,
Technical Education/Youth Services and
Sports, Department, Civil Secretariat, J
& K Jammu.
2. Director General, Youth Services and
Sports Department Jammu.
3. Commissioner, State Vigilance Jammu.
4. Deputy Director, Youth Services and
Sports J & K Government, Jammu.
5. District Youth Services and Sports
Officer, Udhampur. .....Applicant(s)/Petitioner(s)
Through :- Mr. Eishaan Dadhichi, GA
v/s
Nazir Hussain S/o Munir Hussain, R/o
Dhanore Loharan, Tehsil & District
Rajouri. .....Respondent(s)
Through :- Mr. Vivek Sharma, Advocate
Mr. Nikhil Goswamin, Advocate
CORAM: HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE
HON'BLE MR. JUSTICE SANJAY PARIHAR, JUDGE
JUDGMENT
Sanjeev Kumar J Cav No. 2201/2025
1. Heard learned counsel for the Caveator.
2. Caveat stands discharged.
2
2026:JKLHC-JMU:779-DB WP (C) No. 3639/2025
1. This writ petition filed by the Union Territory of Jammu and Kashmir and four others, under Article 226 of the Constitution of India seeks to challenge an order and judgment dated 29.01.2025 passed by the Central Administrative Tribunal Jammu Bench, Jammu ["the Tribunal"] in TA No. 8263/2021 titled "Nazir Hussain vs. State of J&K and others", whereby the Tribunal has allowed the petition of the respondent and quashed the order of his dismissal dated 08.04.2015, passed by petitioner no. 2 herein with a further direction to reinstate the respondent in service within a period of two months from the date of receipt of the order. The petitioners have also been given a liberty to proceed against the respondent in accordance with law.
2. Impugned judgment is assailed by the petitioners on multiple grounds, however, before we advert to the grounds of challenge urged by Mr. Eishaan Dadhichi, learned GA, we deem it appropriate to set out few facts as are necessary for appreciating the controversy raised in this petition in right perspective.
3. The respondent, pursuant to selection process conducted by the petitioners, came to be appointed as Physical Education Teacher in Government Middle School Laytar Zone, Panchari, District Udhampur vide order No. DYSSO/U/4819-4952 dated 19.01.2011. The appointment of the respondent was subject to verification of character/antecedents and eligibility certificates issued by the competent authority.
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4. The respondent had been selected and appointed as Physical Education Teacher on the basis of his qualification of C.P.Ed. which is claimed to have been acquired by the respondent in the year 1995 from Lokmata Indira Gandhi College of Sports Yavatmal, Maharashtra under the Directorate of Sports and Youth Services, Pune, Maharashtra. The qualification certificate of the respondent, purportedly issued by the Directorate of Sports and Youth Services, Maharashtra State, Pune was sent by the District Youth Services and Sports Officer, Udhampur to the competent authority in Maharashtra for verification alongwith two others who were also possessing the similar qualification.
5. The Assistant Director Headquarter in the Directorate of Sports and Youth Services, Maharashtra State, Pune vide his communication dated 23.02.2011 intimated to petitioner no. 2 herein that the C.P.Ed. certificate of the respondent was verified and found correct, accordingly, the Deputy Director Central informed the District Youth Services and Sports Officer, Udhampur vide communication 16.02.2012 that the verification of the C.P.Ed certificate produced by the respondent had been received and the same had been found genuine. On the basis of this verification, the respondent was allowed to continue and was confirmed on completion of two years' probation period.
6. It seems that one Mohd. Hussain lodged a complaint against the respondent before the State Vigilance Commissioner alleging therein that the respondent had secured employment as PET on the basis of a fake C.P.Ed certificate. The then State Vigilance Commissioner 4 2026:JKLHC-JMU:779-DB forwarded the complaint to the Director of Youth Services and Sports, Jammu with a direction to conduct proper verification of the certificate of C.P.Ed submitted by the respondent. The petitioners once again took up the matter with the Directorate of Youth Services and Sports, Maharashtra for re-verification of the certificate of C.P.Ed submitted by the respondent at the time of his appointment.
7. This time a re-verification report came and it was conveyed by the Directorate of Youth Services and Sports, Maharashtra State Pune that the name of the respondent was not found against the Roll No. 7373 in the result register in the year 1995 and, therefore, the certificate produced by the respondent was not authentic.
8. Having obtained the adverse report with regard to the C.P.Ed qualification certificate, produced by the respondent, the Deputy Director Central, acting for and on behalf of petitioner no. 2, issued a show cause notice to the respondent as to why his employment be not terminated ab initio, having been obtained on the basis of a forged document. This was responded to by the respondent immediately. The respondent produced roll number slip, admission card as also the identity card to substantiate that he had appeared in the examination under roll no. 7373. He also annexed with his reply a certificate of having taken part in a tournament of Kabaddi organized by the Institute from where he had undergone the C.P.Ed course. He also pleaded that his qualification certificate was genuine and obtained through legitimate means and that the issue has been raked up by one Mohd. Hussain against whom he had lodged an FIR for commission 5 2026:JKLHC-JMU:779-DB of various offences and that the said complainant bears personal enmity and animosity with him.
9. It seems that the matter did not proceed further and a consequential order, as was warranted, was not passed by the competent authority. However, after sometime, without going through the reply, petitioner no. 2 vide order no. DYSS/Lit/J/61-67 dated 08.04.2015 and without conducting any formal enquiry, terminated the services of the respondent ab initio.
10. Feeling aggrieved, the respondent filed SWP No. 1189 of 2015, which on reorganization of the State and creation of the Tribunal, came to be transferred to the Tribunal where it was re-numbered as TA No. 8263/2021.
11. The petition filed by the respondent was contested by the petitioners herein who in their reply affidavit stated before the Tribunal that the appointment of the respondent as Physical Education Teacher for District Cadre Udhampur under ST category in terms of order no. 81- DYSS/Estt of 2010 dated 08.12.2010 was subject to the condition that the respondent would forfeit his appointment in case of any adverse report or any qualification certificate found to be not genuine.
12. It was pleaded in the objections filed by the petitioners that the matter with regard to the genuineness of the qualification of the respondent was duly enquired into by the petitioners before issuing show cause notice to the respondent.
13. It was submitted that two senior officials of the Department were deputed to Pune to make physical verification and seek authentication of the certificate submitted by the respondent with regard to his 6 2026:JKLHC-JMU:779-DB qualification allegedly obtained from the Directorate of Sports and Youth Services Maharashtra State, Pune and it was established that the certificate produced by the respondent was not genuine. The roll number under which the respondent had allegedly appeared in the examination of the said Directorate was found to be the roll number of one Mr. Manoj Kumar Tripathi s/o Harsh Chand Tripathi.
14. It was, thus, the stand taken by the petitioners before the Tribunal that the respondent had secured the appointment on the basis of a qualification certificate which on verification was found to be fake. Consequently the respondent was dismissed from his service ab initio and this was strictly as per the terms and conditions stipulated in the order of appointment of the respondent.
15. Having heard learned counsel for the parties and perused the material on record, the Tribunal came to the conclusion that the respondent having been confirmed in the Government service was holding a civil post and, therefore, was entitled to protections of Article 311 of the Constitution of India read with Rule 33 of the J & K Civil Services (Classification, Control and Appeal) Rules, 1956 ["the Rules of 1956"].
16. The Tribunal having found that no such enquiry, as envisaged under Article 311 of the Constitution of India read with the Rules of 1956, had been conducted by the petitioners, declared the order of dismissal of the respondent dated 08.04.2015, passed by the petitioner no. 2, bad in the eye of law and liable to be quashed. It is in this background, the Tribunal allowed the petition of the respondent and quashed the order dated 08.04.2015 with a direction to the petitioners to reinstate the 7 2026:JKLHC-JMU:779-DB respondent in service within a period of two months from the date of receipt of the order with a liberty to the petitioners to proceed against the respondent, if they so desire, strictly in accordance with law.
17. Having heard learned counsel for the parties and perused the material on record, it is necessary to first set out few relevant facts which are not in dispute.
18. The respondent upon his selection by the J & K Services Selection Board, came to be appointed as Physical Education Teacher in District Cadre, Udhampur under ST category vide order no. 81-DYSS/Estt of 2010 dated 08.12.2010 with a clear stipulation that the appointment of the respondent would be forfeited/cancelled ab initio in case of adverse reports or any qualification certificate found not genuine.
19. This order was followed by the order of his adjustment issued by the District Youth Services and Sports Officer, Udhampur dated 19.01.2011 which also stipulated inter alia that the pay of the respondent would be released after verification of character/antecedents by the competent authority and that he would be permitted to join the office only after verification of all documents as are required under Rules.
20. The initial verification which was undertaken by the petitioners by taking up the matter with the Directorate of Sports and Youth Services Maharashtra State, Pune was in favour of the respondent. The Assistant Director of the Directorate of Sports and Youth Services Maharashtra State, Pune issued the verification certificate of the respondent on the basis of which his services were confirmed. 8
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21. It was only in the year 2007, one Mohd. Hussain made a complaint before the State Vigilance Commissioner ["SVC"] against the respondent with an allegation that the respondent had procured employment as Physical Education Teacher on the basis of a fake C.P.Ed certificate. The complaint was referred by the SVC to the petitioners for undertaking a fresh verification of C.P.Ed certificate produced by the respondent at the time of his appointment.
22. The certificate of C.P.Ed submitted by the respondent was sent to the Directorate of Sports and Youth Services Maharashtra State, Pune for its verification/authentication vide communication dated 28.04.2014 followed by another communication dated 12.12.2014. In response, the Directorate of Sports and Youth Services, Maharashtra, Pune vide its communication dated 26.12.2014 conveyed that the name of the respondent was not found as against roll no. 7373 as quoted in his certificate and that the certificate was not genuine.
23. On the basis of this re-verification conducted by the petitioners a show cause notice was served upon the respondent by the Deputy Director Central vide its communication no. DYSS/Lit/2338-42 dated 30.12.2014 calling upon the respondent to show cause as to why his appointment be not terminated ab initio having been on the basis of a fake certificate.
24. This was replied by the respondent along with some documentary evidence. It was claimed that the certificate was genuine and the re- verification undertaken by the petitioners on the basis of a complaint lodged by one Mohd. Hussain was totally false and frivolous. He also 9 2026:JKLHC-JMU:779-DB narrated the reason behind making the complaint against by him Mohd. Hussain.
25. Be that as it may, the petitioners, with a view to further verify the matter and take the dispute to the logical end, deputed Deputy Director Central and In-charge Litigation, in the office of petitioner no. 2, to visit the Directorate of Sports and Youth Services, Maharashtra, Pune for making on-spot verification of the qualification certificate of C.P.Ed submitted by the respondent.
26. The Committee of two Officers aforementioned visited the Office of Directorate of Sports and Youth Services, Maharashtra, Pune and submitted its detailed report to the petitioner no. 2 for further necessary action. In the report, it was concluded that the C.P.Ed certificate of the respondent was fake. The detailed report, prepared by the officers who were deputed to Maharashtra, is part of reply affidavit filed by the petitioners before the Tribunal.
27. The report clearly indicates the steps taken towards verification of the C.P.Ed certificate produced by the respondent at the time of his appointment.
28. From reading of the report, it clearly transpires that the first verification report obtained from the Directorate of Sports and Youth Services, Maharashtra on 23.02.2011 was purportedly signed by the Assistant Director of the Directorate. It is on the basis of this report, the respondent was confirmed in service. On verification, it was found that the Assistant Director under whose sign and signature the verification report dated 23.02.2011 had been issued was not authorized to issue such report. The aforesaid certificate was, thus, not 10 2026:JKLHC-JMU:779-DB authenticated by the officials of the Directorate of Sports and Youth Services, Maharashtra Pune.
29. The verification report dated 07.02.2014 purportedly issued by the Directorate of Sports and Youth Services, Maharashtra State Pune was also put to verification before the Joint Director of the Directorate. On verification, it was found that one Mr. Thosray who was in-charge of Sports Stadium at Balewadi was not the Deputy Director and, therefore, was not authorized to issue any such certificate.
30. The dispatched register of the relevant time was also scrutinized and it was found that no entry in dispatch register by the number and date which was printed on the verification report was found. The Directorate of Sports and Youth Services, Maharashtra State, Pune, therefore, trashed the verification report dated 07.02.2014 as well. The verification report dated 26.12.2014 issued by the Directorate of Sports and Youth Services, Maharashtra State, Pune was found genuine on verification. It was found that roll no. 7373 under which the respondent claimed to have taken the examination was not found existing in the result register. The later report dated 23.01.2015 which was obtained by the respondent was also not found genuine and the same was termed by the Joint Director of the Directorate as fake.
31. Similarly, there is a detailed discussion in the report prepared by the officers as to the steps taken by them to verify the C.P.Ed certificate of the respondent and the conclusions arrived at that the C.P.Ed certificate of the respondent was fake. On the basis of this report and after being sure by having on-spot verification of the certificate in the Directorate of Sports and Youth Services Maharashtra, Pune, 11 2026:JKLHC-JMU:779-DB petitioner no. 2 vide order dated 08.04.2015 dismissed the respondent ab initio.
32. From reading of the impugned order dated 08.04.2015 and perusal of the record produced by Mr. Eishaan Dadhichi, learned GA it clearly transpires that the order dated 08.04.2015 dismissing the respondent from service ab initio is based upon the verification report of the Directorate of Sports and Youth Services, Maharashtra Pune and a report dated 30.03.2015 submitted by the team of officers consisting of the then Deputy Director Central and one Mr. Feezoo Jowhar Bashir I/C litigation. Indisputable and there is no denial by the petitioners that this material, i.e., the report of the Committee deputed to the Directorate of Sports and Youth Services, Maharashtra State, Pune for thorough verification of the qualification certificate of the respondent was never given to the respondent nor was he afforded an opportunity to rebut the same or put up his defense.
33. The show cause notice which was issued to the respondent on 30.12.2014 reflected the position and material that existed prior to submission of report dated 30.03.2015 by the Committee of Officers and, therefore, was not sufficient compliance of the principles of natural justice.
34. In these circumstances, the Tribunal was absolutely right in coming to the conclusion that impugned order dated 08.04.2015 suffered for non-compliance with the principles of natural justice.
35. The aforesaid view of the Tribunal is unexceptionable and does not call for any interference. However, in the given facts and circumstances of the case and keeping in view the observations made 12 2026:JKLHC-JMU:779-DB by the Tribunal, a question would arise as to whether the dismissal of an employee on the ground that he had secured employment on the basis of a forged qualification certificate would require compliance of Article 311 of the Constitution of India or not. Our answer to this question is no, and an emphatic no and for which we give our reasons hereinafter.
36. Article 311 of the Constitution of India would be attracted where a person holding a civil post under the State is to be dismissed, removed or reduced in rank and provides that such dismissal, removal or reduction in rank would not be done by the authority sub-ordinate to that by which he was appointed and such dismissal, removal or reduction of rank would happen only after conducting an enquiry in which the delinquent is informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges.
37. Where it is proposed, after such enquiry to impose on him any of the aforesaid penalties, he shall be given a reasonable opportunity of making representation on the penalty proposed. Such protections are available to a person who is a member of the Civil Services of the State or holds a civil service under the State and is required to be dismissed, removed or reduced in rank for any misconduct committed by him during service.
38. The provisions of Article 311 of the Constitution of India which are pari materia with Section 126 of the Constitution of Jammu and Kashmir would not be attracted where the appointment of a person is withdrawn ab initio on the ground that he had managed his appointment on the basis of a forged qualification certificate. 13
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39. In the instant case, the appointment of the respondent was not absolute and was subject to verification of his qualification certificates. The appointment of the respondent clearly stipulated that his appointment would be liable to be withdrawn or cancelled in case it was found that the certificate of qualification submitted by him was found fake or not genuine. A person who is found to have obtained appointment by fraud or on the basis of forged documents is not legally appointed in the eye of law and his termination from service or dismissal from service as the case may be is nothing but a cancellation of void appointment.
40. Protection of Article 311/126 of the Constitution of Jammu and Kashmir may not be applicable to a case of cancellation of a void appointment.
41. The provisions of Article 311 of the Constitution of India/Section 126 of the Constitution of Jammu and Kashmir will be applicable if the appointment was validly made and the delinquent incurs liability of departmental action on account of misconduct committed by him after his appointment.
42. The issue was debated and considered by the Hon'ble Supreme Court as recently as on 12.11.2025 in SLP (C) No. 024705 of 2023 titled "Commissioner of Police and Others vs. Ex. Constable Vinod Kumar"
in which the Hon'ble Supreme Court declined to accept the similar contention of the delinquent that his dismissal from service without holding a departmental enquiry was vitiated.
43. This issue was considered at length by the Hon'ble Supreme Court in the case of "Union of India and Others vs. M. Bhaskaran" 1995 14 2026:JKLHC-JMU:779-DB Supp (4) SCC 100. The relevant extract of paragraph No. 6 of the judgment is set out below:
"It was clearly a case of fraud on the appellant-employer. If once such fraud is detected, the appointment orders themselves which were found to be tainted and vitiated by fraud and acts of cheating on the part of employees, were liable to be recalled and were at least voidable at the option of the employer concerned. This is precisely what has happened in the present case. Once the fraud of the respondents in getting such employment was detected, the respondents were proceeded against in departmental enquiries and were called upon to have their say and thereafter have been removed from service. Such orders or removal would amount to recalling of fraudulently obtained erroneous appointment orders which were avoided by the employer-appellant after following the due procedure of law and complying with the principles of natural justice. Thereafter, even independently of Rule 3(1)(i) and (iii) of the Rules, such fraudulently obtained appointment orders could be legitimately treated as voidable at the option of the employer and could be recalled by the employer and in such cases merely because the respondent-employees have continued in service for a number of years on the basis of such fraudulently obtained employment orders cannot create any equity in their favour or any estoppel against the employer. In this connection we may usefully refer to a decision of this Court in "Distt. Collector & Chairman, Vizianagaram Social Welfare Residential School Society vs. M. Tripura Sundari Devi". In that case Sawant, J. speaking for this Court held that when an advertisement mentions a particular qualification and an appointment is made in disregard of the same, it is not a matter only between the appointing authority and the concerned appointee. The aggrieved are all those who had similar or even better qualifications than the appointee or appointees but who had not applied for the post because they did not possess the qualifications mentioned in the advertisement. It amounts to a fraud on public to appoint persons with inferior qualifications in such circumstances unless it is clearly stated that the qualifications are relaxable. No court should be a party to the perpetuation of the fraudulent practice."
44. At this juncture, we deem it appropriate to refer to and reproduce Para no. 20 of a Supreme Court judgment in "Shrisht Dhawan (smt) vs. M/s Shaw Brothers" (1992) 1 SCC page 534 wherein 15 2026:JKLHC-JMU:779-DB the Hon'ble Supreme Court has very beautifully explained the fraud and held that it vitiates even the most solemn proceedings in any civilized system of jurisprudence. Paragraph no. 20 is set out below:
"20. Fraud and collusion vitiate even the most solemn proceedings in any civilised system of jurisprudence. It is a concept descriptive of human conduct. Michael Levi likens a fraudster to Milton's sorcerer, Comus, who exulted in his ability to, "wing me into the easy-hearted man and trap him into snares". It has been defined as an act of trickery or deceit. In Webster's Third New International Dictionary fraud in equity has been defined as an act or omission to act or concealment by which one person obtains an advantage against conscience over another or which equity or public policy forbids as being prejudicial to another. In Black's Legal Dictionary, fraud is defined as an intentional perversion of truth for the purpose of inducing another in reliance upon it to part with some valuable thing belonging to him or surrender a legal right; a false representation of a matter of fact whether by words or by conduct, by false or misleading allegations, or by concealment of that which should have been disclosed, which deceives and is intended to deceive another so that he shall act upon it to his legal injury. In Concise Oxford Dictionary, it has been defined as criminal deception, use of false representation to gain unjust advantage; dishonest artifice or trick. According to Halsbury's Laws of England, a representation is deemed to have been false, and therefore a misrepresentation, if it was at the material date false in substance and in fact. Section 17 of the Contract Act defines fraud as act committed by a party to a contract with intent to deceive another. From dictionary meaning or even otherwise fraud arises out of deliberate active role of representator about a fact which he knows to be untrue yet he succeeds in misleading the representee by making him believe it to be true. The representation to become fraudulent must be of a fact with knowledge that it was false. In a leading English case what constitutes fraud was described thus: (All ER p. 22 B-C). "Fraud is proved when it is shown that a false 16 2026:JKLHC-JMU:779-DB representation has been made (i) knowingly, or (ii) without belief in its truth, or (iii) recklessly, careless whether it be true or false." But fraud in public law is not the same as fraud in private law. Nor can the ingredients which establish fraud in commercial transaction be of assistance in determining fraud in Administrative Law. It has been aptly observed by Lord Bridge in Khawaja that it is dangerous to introduce maxims of common law as to effect of fraud while determining fraud in relation to statutory law. In Pankaj Bhargava it was observed that fraud in relation to statute must be a colourable transaction to evade the provisions of a statute. "If a statute has been passed for some one particular purpose, a court of law will not countenance any attempt which may be made to extend the operation of the Act to something else which is quite foreign to its object and beyond its scope." Present day concept of fraud on statute has veered round abuse of power or mala fide exercise of power. It may arise due to overstepping the limits of power or defeating the provision of statute by adopting subterfuge or the power may be exercised for extraneous or irrelevant considerations. The colour of fraud in public law or administrative law, as it is developing, is assuming different shades. It arises from a deception committed by disclosure of incorrect facts knowingly and deliberately to invoke exercise of power and procure an order from an authority or tribunal. It must result in exercise of jurisdiction which otherwise would not have been exercised. That is misrepresentation must be in relation to the conditions provided in a section on existence or non-existence of which power can be exercised. But non- disclosure of a fact not required by a statute to be disclosed may not amount to fraud. Even in commercial transactions non-disclosure of every fact does not vitiate the agreement. "In a contract every person must look for himself and ensures that he acquires the information necessary to avoid bad bargain."
In public law the duty is not to deceive. For instance non- disclosure of any reason in the application under Section 21 of the Act about its need after expiry of period or failure to give reason that the premises shall be required by son, daughter or any other family member does not result in misrepresentation or fraud. It is not misrepresentation under Section 21 to state that the premises shall be needed by the landlord after expiry 17 2026:JKLHC-JMU:779-DB of the lease even though the premises in occupation of the landlord on the date of application or, after expiry of period were or may be sufficient. A non-disclosure of fact which is not required by law to be disclosed does not amount to misrepresentation. Section 21 does not place any positive or comprehensive duty on the landlord to disclose any fact except that he did not need the premises for the specified period. Even the Controller is not obliged with a pro-active duty to investigate. Silence or non-disclosure of facts not required by law to be disclosed does not amount to misrepresentation. Even in contracts it is excluded as is clear from explanation to Section 17 unless it relates to fact which is likely to affect willingness of a person to enter into a contract. Fraud or misrepresentation resulting in vitiation of permission in context of Section 21 therefore could mean disclosure of false facts but for which the Controller would not have exercised jurisdiction."
45. Although the judgment aforesaid was in the context of rent control legislation, yet it is beneficial for understanding the rights of a person who has obtained employment by fraud. Dealing with somewhat similar controversy, the Hon'ble Supreme Court in case titled "R. Vishwanatha Pillai vs. State of Kerala and Others"
2004 (2) SCC 105 refuted the similar contention of the delinquent employee who was guilty of entering Government service on the basis of a false caste certificate. It was held that Article 311 of the Constitution of India is attracted where a member of civil service of Union or State is dismissed or removal for any misconduct committed by such employee during the course of his service and not where the entry in service is on the basis of a false qualification or caste certificate. Paragraph Nos. 12 and 13 of the judgment are relevant and are, therefore, reproduced hereunder:18
2026:JKLHC-JMU:779-DB "12. Article 311 provides that a member of a civil service of the Union or of the State shall not be dismissed or removed by any authority subordinate to that by which he was appointed. That the employee shall not be dismissed or removed or reduced in rank except after an inquiry, in which he has been informed of the charges against him and a give a reasonable opportunity of being heard in respect of those charges. In exercise of the power conferred by Sub-section (1) of Section 3 of the All India Services Act 1951, the Central Government, in consultation with the Governments of the States concerned, framed the All India Services (Discipline and Appeal) Rules. 1969. These Rules lay down the detailed procedure as to the manner in which the action is required to be taken against a delinquent public servant. Relying upon the Article 311 and provisions of the Rules, it was contended by Shri Ranjit Kumar, learned senior counsel for the appellant, that the service of the appellant could not be terminated without following the procedure laid therein.
13. We do not find any substance in this submission. The misconduct alleged against the appellant is that he entered the service against reserved post meant for the Scheduled Caste/Scheduled Tribe on the basis of a false caste certificate.
While appointing the appellant as Deputy Superintendent of Police in the year 1977, he was considered as belonging to the Scheduled Caste. This was found to be wrong and his appointment is to be treated as cancelled. This action has been taken not for any misconduct of the appellant during his tenure as civil servant but on the finding that he does not belong to the Scheduled Caste as claimed by him before his appointment to the post. As to whether the certificate produced by him was genuine or not was examined in detail by the KIRTADS and the Scrutiny Committee constituted under the orders of this Court. Appellant was given due opportunity to defend himself. The order passed by the Scrutiny Committee was upheld by the High Court and later on by this Court. On close scrutiny of facts we find that the safeguards provided in Article 311 of the Constitution that the Government servant should not be dismissed or removed or reduced in rank without holding an inquiry in which he has been given an opportunity to defend himself stands complied with. Instead of departmental inquiry 19 2026:JKLHC-JMU:779-DB the inquiry has been conducted by the Scrutiny Committee consisting of three officers, namely, (1) an Additional or Joint Secretary or any officer higher in rank of the Director of the department concerned, (II) The Director, Social Welfare Tribal Welfare/Backward Class Welfare, as the case may be, and (III) in the case of Scheduled Castes another officer having intimate knowledge in the verification and assurance of the social status certificates, who were better equipped to examine the question regarding the validity or otherwise of the caste certificate. Due opportunity was given to the appellant to put-forth his point of view and defend himself. The issuance of a fresh notice under the Rules for proving the same misconduct which has already been examined by an independent body constituted under the direction of this Court, the decision of which has already been upheld upto this Court would be repetitive as well as futile. The second safeguard in Article 311 that the order of dismissal removal and reduction in rank should not be passed by an authority subordinate to that by which he was appointed has also been met with. The impugned order terminating the services of the appellant has been passed by his appointing authority."
46. From reading of Paragraph Nos. 12 and 13 together, it clearly comes out that in a case of misconduct of a Government employee in respect of his entering the service on the basis of a false and forged document protections of Article 311 of the Constitution of India which is in pari materia to Section 126 of the Constitution of Jammu and Kashmir are not in strict sensu attracted
47. As a matter of fact, in such case the employer essentially cancels the appointment which does not tantamount to dismissal or removal of such employee from service. In such circumstances, it would be sufficient if a delinquent employee is put on show cause notice and is given an adequate opportunity of hearing. The only requirement of such action to be taken against the delinquent 20 2026:JKLHC-JMU:779-DB employee is scrupulous a sincere compliance of the principles of natural justice and nothing more. Full-fledged departmental enquiry after framing of charges and inviting reply to the charges from the delinquent may not be necessary. It is, thus, trite that a person who enters service by producing a false or forged testimonials deserves no sympathy or indulgence of the Court. A person who seeks equity must come with clean hands. The judgment in the case of R. Vishwanatha Pillai (supra) was followed by the Supreme Court in "Bank of India and Another vs. Avinash D. Mandivikar and Others" (2005) 7 SCC 690. Close on the heels is a judgment of the Hon'ble Supreme court in the case of "Union of India and Others vs. Prohlad Guha" 2024 INSC 563 wherein the same principles of law in respect of appointments obtained on the basis of false and forged documents has been reiterated. Paragraph Nos. 13.2 & 13.3 are relevant in the context of controversy involved for determination in this petition and are, therefore, set out below.
"13.2. „Fraud‟ is conduct expressed by letter or by word, inducing the other party to take a definite stand as a response to the conduct of the doer of such fraud.
13.3. In "R. Vishwanatha Pillai vs. State of Kerala and Others", a Bench of three learned Judges observed that a person who held a post which he had obtained by fraud, could not be said to be holding a post within the meaning of Article 311 of the Constitution of India. In this case, a person who was not a member of Scheduled Castes, obtained a false certificate of belonging to such category and, as a result thereof, was appointed to a position in the Indian Police Service reserved for applicants from such category."
48. From the case law discussed above, following principles emerge: 21
2026:JKLHC-JMU:779-DB i. That a person is appointed to a post which appointment he has obtained by fraud cannot be said to be holding a post under the Union of India or the State within the meaning of Article 311 of the Constitution of India.
ii. That the appointment obtained by fraud and on the basis of a forged document is void ab initio and non est in the eye of law. Such person cannot claim equity on the basis of long officiation of the post or some action of the employer signifying acquiescence in such appointment.
iii. That fraud vitiates even the most solemn proceeding in any civilized system of jurisprudence.
iv. That the dismissal or removal of a delinquent employee on establishing that he obtained employment by fraud is not strictly speaking dismissal or removal from service as is understood under Article 311 of the Constitution of India, but would be tantamount to cancellation or withdrawal or an order obtained by fraud which does not exist in law and is void ab initio.
v. That where the commission of fraud is disputed by the employee facing the allegation, he shall be entitled to an opportunity of being heard. The order of cancellation/withdrawal of such order should be strictly in compliance with the principles of natural justice.22
2026:JKLHC-JMU:779-DB
49. Above being the position of law, we hold that in the instant case, the respondent was not entitled to the protections of Article 311 of the constitution of India/Section 126 of the Constitution of Jammu and Kashmir, though he ought to have been heard and given an opportunity to produce relevant material in contravention to the allegation of fraud.
50. In the premises, we uphold the order of the Tribunal insofar as and to the extent it declares the order of dismissal of the respondent from service bad for non-compliance with the principles of natural justice.
51. We, however, do not concur with the view of the Tribunal that the respondent was entitled to the protections of Article 311 of the Constitution of India/Section 126 of the Constitution of Jammu and Kashmir. Accordingly, this petition is disposed of by providing as under: -
i. That the order impugned dated 08.04.2015 passed by the Director General Youth and Sports Services is set aside and quashed.
ii. The petitioners shall reinstate the respondent in service within a period of one month from the date of receipt of this order. The petitioners shall be at liberty to proceed against the respondent and pass fresh order in strict compliance with the principles of natural justice, in that, the respondent shall be given an opportunity to put forth his stand and the documentary evidence, if any, in his possession in controversion of the 23 2026:JKLHC-JMU:779-DB allegation of fraud alleged against him by the petitioners.
52. In the event, the petitioners chose to proceed against the respondent afresh, they shall be well within their right to place the respondent under suspension. The entitlement of the respondent to the consequential benefits except the monetary benefits shall depend upon the result of exercise the petitioners undertake in compliance with this order.
53. The judgment of the Tribunal shall stand modified to the aforesaid extent.
(Sanjay Parihar) (Sanjeev Kumar)
Judge Judge
JAMMU
11.03.2026
Manik
Whether this order is speaking: Yes
Whether this order is reportable: Yes